1 ABOUT THE SITE
1.1 Thank you for using our website located at www.incompetenceinsurance.com.au and any other site or social media account under the name “Incompetence Insurance” (collectively, “Site”). This Site is operated by Nutshell Media Pty Ltd (ACN 641 571 146).
1.2 Any reference to “our,” “we,” “us” means Nutshell Media Pty Ltd (ACN 641 571 146). Any reference to “you” or “your” means you, as a user of the Site.
1.4 The Site gives you an opportunity to complete questionnaires and submit enquiries about goods and services offered by our Partners (our “Services”), who in return may contact you in relation to your enquiry.
1.5 We have commercial arrangements with our Partners. We receive financial payment from our Partners when you use our Services. We receive this financial benefit by sharing your personal information with our Partners (“Service Leads”) so that they can contact you about their products and services.
1.6 We reserve the right to update these Terms from time to time. Any changes to these Terms will be effective from the date published on our Site.
1.7 These Terms will prevail over any other terms or agreement between you and us.
1.8 You agree that we may terminate your access to the Site at any time and without any reason. If we request that you stop using the Site, you must immediately comply with that request.
2.1 In addition to the definitions provided in clause 1, the following words have the following meaning in these Terms:
2.2 “Call to Action” means any link on our Site whereby you are led to submit information to one of our Partners, including without limitations, links titled “Find a deal” or “Submit Enquiry”.
2.3 “Claim” includes any demand, claim, action, proceeding, loss (including consequential loss), damages, costs, expenses, requisition, objection, alleged right of indemnity incurred or suffered by, or brought or made or recovered against a matter, no matter how arising (whether or not presently ascertained) in the immediate future or contingent (whether criminal or civil, in contract, tort or otherwise).
2.4 “Incompetence Test” means a fictitious test on our site by which you can check how incompetent you are based on made up numbers.
2.5 “Intellectual Property Rights” means any intellectual property including all copyright, patents, trademarks, design rights, trade secrets, circuit layouts, rights in database and data rights, domain names, know-how, trade secrets, procedures, technical designs, software and code and other rights of a similar nature, whether registrable or not and whether registered or not, and any applications for registration or rights to make such an application.
2.6 “Law” includes a constitutional provision, treaty, decree, convention, statute, regulation, ordinance, by-law, judgment, rule of common law or equity and is a reference to that law as amended, consolidated or replaced.
2.7 “Loss” means any liability, cost, expense, loss or damage, including without limitation in relation to a Claim, amounts payable on a Claim (whether or not the Claim is successful) and legal costs and expenses on a solicitor and own client basis.
2.8 “Partners” means a third party that has contracted with us for the purchase of Service Leads.
2.9 “Privacy Laws” means the Privacy Act 1988 (Cth) and the Privacy Amendment (Notifiable Data Breaches) Act 2017 (Cth).
2.11 “Services” means the services provided by us which are limited to providing you with access to the Site, and the information on the Site.
2.12 “Service Leads” means the personal information obtained from users who engage in our Services provided on the Site. Service Leads are shared with our Partners for a financial payment.
2.13 “State” means the state of Victoria in the Commonwealth of Australia.
2.14 “Uploaded Content” means any content whatsoever which you upload to the Site, including but not limited to, any text, graphics, photos, designs, trademarks, artwork, descriptions, reviews, usage data, feedback, comments, chats and media.
2.15 “Warranties” means any warranties, conditions, terms, representations, statements and promises of whatever nature, whether express or implied
2.16 “Works” means any literary, dramatic, musical or artistic work pursuant to Part III of the Copyright Act 1968 (Cth) and any Part IV subject matter such as cine-films, sound recordings, publications, television broadcasts including any rights in performances.
3 WARRANT OF AUTHORITY
3.1 Your use of the Site is conditional on you being over 18 and resident in Australia. Accordingly, by using the Site, you warrant this to us. If the above conditions are not satisfied, please cease using the Site immediately.
4 OUR SERVICES
4.1 Our Site and Services are intended to provide a general overview for information and guidance purposes only, and to give users the chance to be contacted by our Partners so that they can independently consider whether the products or services advertised on the Site are suitable for their needs. It is not intended to constitute financial, legal or professional advice, or advice based on your requirements.
4.2 You understand that our Services are only intended to introduce users who enquire about certain goods or services to Partners that may be able to provide those goods or services. We do not actually provide you with those goods or services. We only provide the Services as described in clause 2.
4.3 We make no Warranties of any kind as to the Services, or any products or services advertised on Site whether express or implied.
4.4 Although we make reasonable efforts to update the information on our Site, we do not guarantee that our Site is in all respects accurate, complete or current. We also do not say that we present all of the options available to you.
4.5 By using our Services, you agree that:
(a) you are a bona fide user of the Site that is interested in being contacted by our Partners for the purpose of purchasing goods or services offered by our Partners;
(c) we receive a commission by referring Service Leads to our Partners;
(d) we may contact you directly in relation to any goods or services you have enquired about, or another enquiry you have made on the Site;
(e) we, or our Partners, may send you marketing emails;
(f) we are not liable to you or any other third party in relation to any products or services offered by our Partners, including any advice or recommendations made by our Partners, or any dealings that may be agreed upon or entered between you and or Partners; and
(g) any purchase of goods or services made by you is done solely at your own risk and in reliance on your own enquiries.
4.6 We do not guarantee any impartiality on our part between the various Partners, or that we include all relevant service providers. We are entitled to exclude or refuse to list any service provider in our sole discretion. You acknowledge that some Partners may pay us for Service Leads and this may result in those Partners receiving preferential treatment by us or on the Site.
4.7 When you click or submit any Call to Action on the Site, you essentially submitting an expression of interest which we will forward to the relevant Partner. The Partner may contact you to follow up the enquiry, but we cannot guarantee that.
5 PRODUCTS AND SERVICES OFFERED BY OUR PARTNERS
5.1 We bear no responsibility to vet the credentials, pricing, expertise, suitability, credentials or quality of our Partners or the goods or services they provide to you, if you decide to engage with our Partners.
5.2 We make no warranty as to the truth, suitability, quality or accuracy of any information provided by Partners, including, but not limited to, the ability of Partners to provide any particular goods or services, or the pricing of any goods or services offered by Partners.
5.3 We do not endorse, sponsor, support, warrant or guarantee the products or services of our Partners. You must ensure that any products or services offered by our Partners meet your needs or are otherwise suitable for their purposes, and that you have made your own inquiries as to any offerings made by our Partners.
5.4 You agree that we are not liable for any actions or omissions of our Partners. You agree that we are not liable for any direct, indirect, punitive, incidental, special, consequential damages or any damages whatsoever including, without limitation, any Claims or Losses, including loss of profits, arising out of or in any way connected with any transaction, engagement or agreement entered into between you and a Partner, or connected to the supply of goods or services by a Partner.
5.5 You are solely responsible for any interactions or disputes that may arise between you and a Partner. You agree that Amebae has no obligation to engage in or monitor disputes between users and Partners.
6 INCOMPETENCE TEST
6.1 We provide you with access to and use of the Incompetence Test.
6.2 The Incompetence Test may be updated from time to time and new features may be added to it.
7 Uploaded Content
7.1 Where the Site allows you to upload any Uploaded Content, you:
(a) represent and warrant to us that you have all right, title, interest and authority in the Uploaded Content;
(b) represent and warrant to us that you have the permission to use the name and likeness of each person whose image appears in any Uploaded Content in the manner contemplated by these Terms;
(c) represent and warrant to us that the use or exploitation of Uploaded Content will not infringe the rights of any third party (including, but are not limited to, intellectual property rights and privacy rights); and
(d) agree and undertake to us to pay all amounts which become owing to any person (whether by way of royalty or otherwise) as a result of or in connection with your submission of the Uploaded Content to or via the Platform;
(e) must not upload any Uploaded Content that;
(i) that is or could reasonably be considered to be obscene, inappropriate, defamatory, disparaging, indecent, seditious, offensive, pornographic, threatening, abusive, liable to incite racial hatred, discriminatory, profane, in breach of confidence, in breach of privacy or harassing;
(ii) that would bring us or the Platform into disrepute;
(iii) that you know (or ought reasonably to suspect) is false, misleading, untruthful or inaccurate;
(iv) that contains unsolicited or unauthorised advertising (including junk mail or spam); or
(v) that contains computer or software viruses, files or programs that are designed to interfere with the ordinary functionality of the Platform, or obtain unauthorised access to any system, information, security device belonging to us or any third party;
(f) agree that it is your responsibility to back up any of Uploaded Content to your own systems. We do not guarantee that the Platform will always be available at all times;
(g) agree that we can store Uploaded Content in our servers; and
(h) to the maximum extent permitted by law, release us and indemnify us from any claim or loss in relation to Uploaded Content being stored in our servers.
8 INTELLECTUAL PROPERTY
8.1 We own the Intellectual Property Rights in the Works on this Site. You acknowledge that the Intellectual Property Rights in or relating to the Site is the property of or licensed by us or vests on creation in us. Any other third-party trade marks, service marks, logos, trade names and any other proprietary designations are the trade marks or property of the respective parties.
8.2 The Works on the Site are subject to copyright and owned by the copyright owner. The copyright material on the Site is protected by copyright under the laws of Australia and through international treaties.
8.3 Unless otherwise indicated, all rights (including copyright) on the Site and a part of the compilation of the Site (including but not limited to text, graphics, logos, button icons, video images, audio clips, code, scripts, design elements and interactive features) are owned or controlled by us or any related entities. Information procured from a third-party may be the subject of copyright owned by that third-party.
8.4 You must not reproduce or redistribute any Works on the Site without our permission. Nothing contained on the Site or in these Terms should be construed as granting a licence or right to use any such Intellectual Property or Works without our prior written consent.
8.5 Unless otherwise stated, we retain all rights, title and interest in and to the Works on the Site. Nothing you do on or in relation to the Site will transfer any:
(a) business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright;
(b) right to use or exploit a business name, trading name, domain name, trade mark, industrial design, patent, registered design or copyright;
(c) thing, invention, design, system, work or process that is the subject of a patent, registered design or copyright or any other Intellectual Property Right (or an adaptation, improvement, modification of such a thing, invention, design, system, work or process); or
(d) any proprietary rights in the Site.
9 LIMITATION OF LIABILITY
9.1 To the maximum extent permitted by law, we exclude all Warranties relating to the subject matter of these Terms, our Site and the use of our Services.
9.2 This exclusion includes loss or damage you might suffer because of any of the following:
(a) reliance on the completeness, accuracy, suitability or currency of the information contained on the Site or resulting from your use of the Services (including material, products or services provided by our Partners);
(b) failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, virus or other harmful component, loss of data, communication line failure, unlawful third-party conduct, or theft, destruction, alteration or unauthorised access to records;
(c) accessing any sites or servers maintained by other organisations through links on the Site or any communication from our Partners. Links are provided for the convenience of users of the Site only and without responsibility for the content or operation of those sites (unless otherwise stated, linked sites and the services are not endorsed by us and your linking to any such site is at your own risk);
(d) the provision of credit card or other financial information, the failure to complete (or delay in completing) any transaction, or other loss or damage arising from any e-commerce transacted or attempted to be transacted on the Site (if any).
9.3 To the extent permitted by law, we disclaim all warranties, express or implied. We do not warrant that the Site will be uninterrupted or free from error or that any defects on the Site will be corrected or that the Site or servers are free of viruses or other harmful conditions or components.
9.4 To the maximum extent permitted by Law, the maximum liability for a breach of a condition or implied warranty which cannot be excluded, is limited to the maximum extent possible, at our option, to:
(a) the supply of products or services to you again; or
(b) the payment of the cost of having the products or services supplied to you again.
9.5 Our liability arising in connection with these Terms or the Platform is limited as follows:
(a) we exclude all liability for consequential, special, indirect or remote loss, including loss of opportunity, savings or business;
(b) our total maximum total liability arising in connection with these Terms is capped to the total amount of any financial benefit we have received as a result of providing your Service Lead to our Partners;
(c) our liability is excluded to the extent that you contributed to the liability;
(d) we exclude all liability for anything you have been aware of for longer than six months and you have not commenced a claim; and
(e) our liability is subject to your duty to mitigate your loss.
9.6 All subclauses of this clause 9 are cumulative to one another.
10.1 To the maximum extent permitted by law, you agree to release the Released Parties from all Loss or Claims arising out of or in any way connected with any Relevant Matter. You further waive any and all rights and benefits otherwise conferred by any statutory or non-statutory law of any jurisdiction that would purport to limit the scope of a release or waiver.
10.2 To the maximum extent permitted by law, you agree to indemnify, defend and hold harmless the Released Parties from any Loss or Claims arising out of or in any way connected with any Relevant Matter.
10.3 You agree to promptly notify us of any third-party Claims, cooperate with all Released Parties in defending such Claims and pay all fees, costs and expenses associated with defending such Claims (including, but not limited to, legal fees on a full indemnity basis). You agree not to settle any Claim without our prior written consent.
10.4 We reserve the right, at our own expense, to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defence of such claim.
10.5 In this clause:
(a) “Released Parties” means us and our officers, directors, shareholders, agents, employees, consultants, associates, affiliates, subsidiaries, related parties, related body corporates, sponsors, and other third-party partners.
(b) “Relevant Matter” means anything in connection with:
(i) your access to or use of the Site, Services, and its Works;
(ii) any direct or indirect consequences of you accessing or using the Site and Services or entering into an agreement with our Partners;
(iii) any damage to person, property, personal injury or death;
(iv) your breach of these Terms;
(v) any matter for which we have purported to disclaim liability for under these Terms;
(vi) your breach or failure to observe any applicable law.
11.1 You are solely responsible for any interactions or disputes that may arise out of you transacting or communicating with our Partners.
11.2 If a dispute arises out of or relates to the Terms as between us and a user (“Dispute”), either party may not commence any Tribunal or Court proceedings in relation to the dispute, unless the following clauses have been complied with (except where urgent interlocutory relief is sought).
(a) Compulsory process. A Party shall not start arbitration or court proceedings (except proceedings seeking interlocutory relief) in respect of a Dispute unless it has complied with this clause.
(b) Notification. A Party claiming that a Dispute has arisen shall notify each other party to the Dispute giving details of the Dispute.
(c) Initial period – efforts to resolve Dispute. During the 30-day period after a notice is given (or longer period agreed in writing by the Parties to the Dispute) (“Initial Period”) each Party to the Dispute (“Disputant”) covenants with the other to cooperate and take all reasonable steps necessary to attempt to resolve the Dispute.
(d) Mediation. If the Disputants are unable to resolve the Dispute within the Initial Period, each Disputant agrees that the Dispute shall be referred for mediation, at the request of any Disputant, to:
(i) a mediator agreed on by the Disputants; or
(ii) if the Disputants are unable to agree on a mediator within seven days after the end of the Initial Period, then the Parties must submit the dispute for mediation through the Chair of Resolution Institute (ACN 008 651 232) or the Chair’s designated representative and the Resolution Institute Mediation Rules shall apply to the mediation.
(e) Role of mediator. The role of any mediator is to assist in negotiating a resolution of the Dispute. A mediator may not make a decision that is binding on a Disputant unless that Disputant has so agreed in writing.
(f) Information. Any information or documentation disclosed by a Disputant under this clause shall be kept confidential and may not be used except to attempt to resolve the Dispute.
(g) Costs of mediation. Each Disputant shall pay its own costs of complying with this clause. The Disputants shall pay equally the costs of any mediator engaged.
(h) Location, timing and attendance. The mediation will be held in Melbourne, Australia, within 30 days after expiry of the Initial Period. Each Disputant agrees to attend the mediation by a representative having full authority to resolve the dispute. At the mediation, each Disputant may be represented by one or more legal representative.
(i) Failure to resolve. If the dispute fails to resolve at mediation or if one of the Disputants fails or refuses to attend the mediation, the mediator will be requested to inform each Disputant in writing that the mediation has been terminated without resolution (“Mediation Termination Notice”). Upon receipt of Mediation Termination Notice, the dispute resolution process will be terminated. A party to a dispute will only be entitled to pursue other remedies available to it at law or otherwise, after receipt of Mediation Termination Notice.
(j) Confidentiality. All communications concerning negotiations made by the Disputants arising out of and in connection with this dispute resolution clause are confidential and to the extent possible, must be treated as “without prejudice” negotiations for the purpose of the applicable law of evidence.
12 ADVERTISING AND LINKS
12.1 The Site may contain links and pointers to websites operated by third parties or Partner websites.
12.2 We do not control these linked websites and are not responsible for the contents of any linked website. The links are provided solely for your convenience and do not indicate, expressly or impliedly, any endorsement by us of the site or the products or services provided at those sites.
12.3 Your access to any such website is at your own risk. You must contact the relevant third-party directly to enquire on that information prior to entering into a transaction in relation to the third-party products and services.
13.1 You must not assign, sublicense or otherwise deal in any other way with any of your rights under these Terms.
13.2 If a provision of these Terms is invalid or unenforceable it is to be read down or severed to the extent necessary without affecting the validity or enforceability of the remaining provisions.
13.3 These Terms are governed by the laws of the State and each party submits to the jurisdiction of the courts of the State and all courts of appeal therefrom.
13.4 Any waiver of any term on these Terms by us can only be done in express writing. Any failure on our part to enforce a term does not constitute a waiver and we reserve the right in relation to all breaches unless expressly stated otherwise.
13.5 The contents of these Terms constitute the entire agreement between the parties and supersede any prior negotiations, representations, understandings or arrangements made between the parties regarding the subject matter of this agreement, whether orally or in writing.
13.6 A provision of these Terms which can and is intended to operate after its conclusion will remain in full force and effect – including without limitation clauses 2, 5, 7, 8, 9, 10, 11, 13 and all disclaimers, indemnities and releases.
14 OUR DETAILS
14.1 This Site is operated by us, Nutshell Media Pty Ltd (ACN 641 571 146).
14.2 Our principal place of business is at Level 11, 484 St Kilda Rd, Melbourne 3004.
14.3 You can contact us:
(a) by post, using the mailing address given above;
(b) using our contact form on the Site, should one be made available to you;
(c) by email at [email protected]
14.4 Notices are taken to be read on the day they are received, unless they are received after 5 PM or not on a business day in the State, in which case they are deemed to be received on the next business day.
© 2021 Nutshell Media Pty Ltd. ALL RIGHTS RESERVED.
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